Stalking the Wily Electronic Documents

I am STILL surprised when I hear that some judges question whether eSignatures can be as trustworthy as “wet-ink” signatures. In law school I somehow missed the course that conferred “expert handwriting analyst” status; but maybe that was just one of my many oversights. I mean, really? Leave aside all other arguments: How many people are even marginally qualified to determine with any level of certainty whether a signature, on its face, is “authentic”? My oft-stated position is that a passable ability to forge signatures that will endure routine scrutiny is a sixth-grade level survival skill, honed through practice on permission slips and potentially embarrassing notes from teachers.

At the October Texas Association of Court Administrators (TACA) Conference, David Slayton[1] gave an excellent presentation on e-filing. Among other things, he showed documents eSigned using “/s/” and using a graphic, hand-drawn eSignature, either of which are acceptable under Texas rules.

David remarked that he occasionally has judges question whether such eSignatures are adequate. He gets remarks like, “Anyone can type “/s/” or paste an image of a signature onto a document.” He says his answer is, “Yes, Judge; but I know EXACTLY where the document came from, and whose profile was used to send it.” Knowing that a document has come from the right place, and knowing whose secure profile was used to send it, constitute security orders of magnitude greater than a written signature on a piece of paper. eSigned documents are simply more secure.

Taking David’s point a step further, in an appropriately implemented Enterprise Content Management (ECM) with workflow system, not only do you know where the document came from, you know where it’s been and where it’s supposed to be going. It’s like Billy’s trail in the Family Circus: it leaves its tracks. It keeps track of who has looked at it and when. It keeps track of what was done to it, by whom, and when. And, unlike Hansel and Gretel’s breadcrumb trail, it doesn’t disappear.

Family Circus – Jeff and Bill Keane

Not to push the Family Circus analogy too far, as there are of course many, many other important aspects of ECM with workflow; but one closely related aspect does bear mentioning. Billy may LIKE to wander all over hither and yon; but if he’s doing it every day (or if everyone is doing it), it may be time to find a more direct path. ECM with workflow will let the court know what route documents are following. If there are unnecessary steps; or if the order in which they are being processed is chaotic (or at least non-optimal), that will show up like Billy’s footprints after walking in mud.

Finally, if Billy takes the same route every day, but one day, even though he ends up in the same place, the trail is different, that’s another flag to apply extra scrutiny. If a filer always files according to a regular pattern, but a purported filing comes in following a non-routine pattern, that will signal the advisability of further checking its veracity. In large courts with many filers, such patterns are probably impossible to keep track of in a paper-based system; but an ECM receiving eFiled documents has considerably greater capabilities in this regard.

Thus, with eSigned documents in a properly implemented ECM with workflow system, not only do we know that the document comes from who it’s supposed to; we know whether or not it’s been altered since it was sent, who has touched it, where it’s been, where it’s heading, whether it’s behavior makes sense, and if not, what would make better sense. Sorry about that, Judge; paper documents with wet-ink signatures just won’t do that.

[1] David Slayton is Administrative Director at the Texas Office of Court Administration. He is currently President of the National Association for Court Management (NACM).

A technical answer is beyond my capabilities. My high-level answer is that it would be far less difficult to gain access to a hard file and remove and substitute an altered/forged copy of the document. Even assuming the ability to access and alter a PDF document, the ability to hide the fact of the access and the fact of the alteration would require an extremely high level of technical sophistication. For a lot less effort, someone could get access to the hard file, create an extremely convincing forgery (or even alter the original), and return the file undetected. It would be highly problematical that even the fact the file had been accessed would be noticed, much less remembered.